## Facts

- Cecilia Gonzalez used the KaZaA peer-to-peer network to download and store more than 1,370 copyrighted songs over several weeks without authorization.
- She claimed the downloads were for “sampling” on a try-before-you-buy basis.
- Gonzalez owned CDs for some downloaded songs and later purchased others, but she never obtained legitimate copies of at least 30 downloaded songs.
- Rather than deleting songs she did not buy, Gonzalez retained the files on her computer.
- The recording companies owned the relevant copyrights and sued for infringement based on the unauthorized copying.

## Issues

1. Whether unauthorized downloading and retention of complete copyrighted songs from a peer-to-peer network, claimed to be “sampling,” is fair use under 17 U.S.C. § 107.
2. Whether downloading and keeping full songs for free functions as a substitute for purchase and causes market harm weighing against fair use.
3. Whether the fair use defense presented any genuine dispute of material fact that would preclude summary judgment.

## Decision

- The Seventh Circuit affirmed summary judgment for the copyright owners.
- The court held Gonzalez’s downloading and retention of full songs was not fair use under § 107.
- The court affirmed statutory damages of $22,500 (30 songs × $750 minimum per work).
- The court affirmed a permanent injunction barring future downloading of plaintiffs’ copyrighted recordings.

## Legal Principles

- Downloading and retaining unauthorized full copies of copyrighted songs constitutes infringement absent a valid defense.
- “Sampling” or try-before-you-buy copying of entire songs from an unauthorized source is not analogous to licensed broadcast time-shifting and does not qualify as fair use.
- Copying entire works for personal entertainment, without transformation, weighs against fair use, especially where works are sold by the track.
- Market-effect analysis strongly disfavors fair use when free copies are close substitutes for purchased recordings and compete with lawful sampling and distribution channels.
- Summary judgment is proper when material facts about copying, lack of authorization, and retention are undisputed and the § 107 factors cannot support fair use as a matter of law.

## Conclusion

The court concluded that keeping complete songs downloaded for free through a peer-to-peer service is a purchase substitute that harms copyright markets, so the fair use defense failed as a matter of law and the damages and injunction were affirmed.


BMG Music v. Gonzalez, 430 F.3d 888 (7th Cir. 2005)